APPLICANT REQUESTS:  That his military records be corrected to reflect a retroactive promotion to chief warrant officer five (CW5) and that his previous active status pay and his current retired pay be adjusted to reflect the promotion.

APPLICANT STATES:  That he has exhausted all administrative channels in seeking the foregoing corrections to his records.

COUNSEL CONTENDS:  That the applicant should have been promoted to CW5 effective at least 31 days prior to 7 July 1993, the date he applied for retirement.  Instead, he was retired as a CW4.  The applicant’s rights to timely promotion to CW5 were materially prejudiced through no fault of his own because of inadequate notice, delay, arbitrary and capricious decisions denying favorable action, and an overall lack of consideration on the part of the Army to an officer twice selected for CW5.

EVIDENCE OF RECORD:  The applicant's military records show:

He was promoted to CW4 effective 9 July 1976.  His mandatory removal date from an active USAR status was established as 31 July 1993.  He was placed on the retired list as of 7 July 1993 in the grade of CW4 with over 40 years of service.

On 22 June 1992 the applicant was notified by the US Total Army Personnel Command (PERSCOM) that a reserve component selection board had selected him for promotion to the grade of CW5.  However, before the promotion could be effectuated the PERSCOM voided the promotion notification due to additional administrative requirements that were established for promotion to CW5.

On 7 December 1992 he was again notified that he had been selected for promotion to CW5 by a reserve component selection board.  Requirements for promotion included that he be in an active status, meet time in grade requirements, be medically qualified for retention and meet the standards of the Army weight control program.  Additionally, he was required to be assigned to a duty position authorized the grade of MW/W5 and have completed the Master Warrant Officer Training Course (MWOTC).

The applicant readily met all requirements for promotion except for assignment to a CW5 position and completion of the MWOTC.  After some initial confusion the position he occupied was designated a CW5 position.  This left only the requirement to complete the MWOTC in order to qualify for promotion.

On 3 June 1993 the applicant telephonically contacted the warrant officer branch and requested permission to attend the next MWOTC.  He was advised that the course was taught only once a year and the next one would take place between 7 and 18 June 1993.  Although he was facing an MRD in July 1993, he was denied permission to attend the course because the class was full and funding was a problem.  On 25 June 1993 he forwarded a request to waive the two-week school requirement for promotion.  The request was favorably endorsed by his chain of command but disapproved by the PERSCOM.

In its response, the PERSCOM contended that there were no regulatory provisions to waive the school requirement before promotion and that an exception to the requirement in his case was not warranted.  The response went on to say that the applicant had an MRD of 31 July 1993 thus, even if an exception were granted he could not retire in the higher grade before his MRD (he would have had to serve at least 31 days in the new grade to retire in that grade).

On 21 July 1993 the applicant was advised by his higher headquarters that his MRD was 31 July 1993 and he was required to exercise an option to transfer to the retired reserve or accept discharge from the USAR.  On 27 July 1993 he opted to transfer to the retired reserve.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s inability to complete the prerequisites for promotion to CW5 before reaching his MRD were the result of a combination of factors none of which appear to be intentionally designed to obstruct his promotion.  The revised administrative guidance for promotion combined with the lateness of their publication, in terms of proximity to his MRD, and the brief time remaining until retirement, did not permit sufficient time for him to complete all requirements.

2.  While there may have been an oversight in announcing the June 1993 MWOTC, which is not altogether clear from the record, the PERSCOM was not wrong in denying his last minute request to attend a completely full class or by declining to waive the requirement to complete it before he could be promoted.

3.  While the Board empathizes with the applicant, it sees no actions that were directed against him that would not also have been applicable to other individuals in similar circumstances.  It is indeed unfortunate that an impending MRD denied an obviously talented and dedicated soldier the opportunity to serve and retire as a CW5; however, counsels contentions to the contrary, the Board does not see the arbitrary and capricious actions intended to undermine his chance for promotion.

4.  USAR promotions, unlike active component promotions, are by design event driven occurrences.  The requirement that the officer occupy the higher graded duty position before attending training or qualifying for promotion appears to be a logical and rational requirement when considering the limited assignment flexibility in the USAR environment.

5.  In view of the foregoing, there is no basis for granting the applicant's request.


DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director